The Kentucky Review Volume 4 | Number 3 Article 5 Spring 1983 The inetN eenth-Century Criminal Jury: Kentucky in the Context of the American Experience Robert M. Ireland University of Kentucky, [email protected] Follow this and additional works at: https://uknowledge.uky.edu/kentucky-review Part of the Legal Commons, and the United States History Commons Click here to let us know how access to this document benefits oy u. Recommended Citation Ireland, Robert M. (1983) "The ineN teenth-Century Criminal Jury: Kentucky in the Context of the American Experience," The Kentucky Review: Vol. 4 : No. 3 , Article 5. Available at: https://uknowledge.uky.edu/kentucky-review/vol4/iss3/5 This Article is brought to you for free and open access by the University of Kentucky Libraries at UKnowledge. It has been accepted for inclusion in The Kentucky Review by an authorized editor of UKnowledge. For more information, please contact [email protected]. The Nineteenth-Century Criminal Jury: Kentucky in the Context of the American Experience Robert M. Ireland ln many ways the petit jury formed the most crucial element of the criminal justice system of nineteenth-century America. While in matters of civil law juries steadily lost power to trial judges, in matters of criminal law they generally gained. Historians have made much of the development which saw judges gradually establish the right to give juries theoretically binding instructions in criminal trials. During the first half of the century juries in many states successfully maintained the right to act as the judges of both the law and the facts of criminal cases. Thereafter many state appellate courts, spurred on by Lemuel Shaw's controversial yet highly influential opinion in Commonwealth v . Porter in 1845, began to claim for trial judges the right to determine the law of the case. Bitter debate accompanied some of these efforts, as, for example, in Massachusetts, where reformers attempted unsuccessfully in 1853 to repeal the Porter decision by constitutional amendment. Kentucky accomplished by statute what Shaw had done by judicial decision. After the Constitutional Convention of 1849 rejected a proposed provision in the new charter which would have expressly given to the jury the right to act as judge of law as well as fact, the drafters of the criminal code of practice of 1854 gave judges the right to instruct juries in writing. Yet while the Court of Appeals held in 1858 that judges were the determiners of the law in criminal cases, it also recognized that juries had the power to ignore instructions and determine the law for themselves. The evidence suggests that they freely did this, both in the nation as a whole and in Kentucky in particular. In addition, legislatures and constitutional conventions throughout the nineteenth century gradually took from trial judges in many states their right to comment on the weight of the evidence, a power that gave them much greater influence over juries than did the right to instruct. On balance, nineteenth-century criminal juries gained 52 THE KENTUCKY REVIEW power at the expense of judges, which meant that they had more control than ever over the fate of criminal defendants. 1 To some, the greater control of juries over criminal verdicts helped produce a climate of permissiveness towards criminals, especially murderers. "The constantly increasing difficulty of procuring convictions on indictment for murder, when there is no real doubt of the guilt of the accused, is another encouragement to the commission of capital offenses," proclaimed the New Englander in 1844, sounding a theme common to commentators on the jury system in many states during the nineteenth century. Following the e acquittal of a notorious criminal indicted for assault with intent to kill, a St. Louis judge in 1896 ordered the defendant's burglary tools returned to him and announced that there was not "much use in maintaining courts when juries return such verdicts." New Yorkers continually chided criminal juries of their state for ignoring the instructions of judges and reaching verdicts contrary to the logic of the case. In 1858 the New York Times described the verdict of a jury which found a killer of a constable guilty of first-degree manslaughter as "the most absurd as is possible to imagine . they might as well have brought in a verdict for horse-stealing." Three years later the North American Review contended that another New York jury had "disregarded" its oath in finding a mother, who had drowned her newborn baby, guilty only of second-degree manslaughter, a crime which required the perpetrator to have killed in a fit of passion. The same journal marvelled at a jury's inconsistency in a trial of a brother and sister for the murder of the sister's husband. Although both seemed equally guilty, the jury found the brother guilty of first-degree murder and the sister only of second-degree manslaughter. According to 'T.M.C." (probably Thomas Mcintyre Cooley, the famous Michigan legal scholar and jurist), writing in the American Law Register, criminal jury verdicts in the nation as a whole fit :I well within the "curious," "absurd," and "erroneous" mold of New York.2 The independence of juries in Kentucky likewise contributed to its homicide problem, in the opinion of many observers. Reflecting e in 1879 on his long sojourn in the state from 1830 to 1868, Bishop Benjamin B. Smith concluded that '-'no jury can anywhere be found who will bring in a verdict of guilty of anything worse than 'done in a state of delirium' or in 'self-defense,' or in effect justifiable homicide." 'Time and time again" Smith had seen "the verdict of 53 IRELAND justifiable homicide brought in cases which by we of New England and the North would be considered cold-blooded murder." The ever-critical Louisville Commercial found the state's jury system to be "rotten and corrupt" with particular weakness towards accused murderers. In 1879 the Lexington Transcript condemned the system's "leniency," a sentiment echoed by many of the state's other newspapers. Two years later the Kentucky Yeoman proclaimed an oft-repeated assumption that juries were much harder on horse­ thieves than murderers. In 1882, A.E. Wilson, a Louisville attorney, pronounced juries soft on killers, while two years later Asher Caruth, commonwealth's attorney for Jefferson County, in a closing statement to a jury stated that previous juries had "disgraced" the county by allowing "red-handed murderers to go scot-free ...." About the same time, a state senator proclaimed that "popular confidence in juries had been seriously jeopardized ...." A delegate to the Constitutional Convention of 1890-1891 concluded that juries had done more to undermine public confidence in the state's criminal justice system than almost any other single influence. 3 A variety of causes accounted for the deficiencies in the jury systems of Kentucky and the nation. To begin with, the method of gathering jurors had shortcomings both in form and execution. Kentucky's jury-gathering apparatus appears to have been typical. Until 1836 sheriffs depended solely upon bystanders who were supposed to be housekeepers "possessed of a visible estate, real or personal, of the value of twenty pounds at least." Governor John Breathitt, among others, found this method "not well adapted to a correct administration of the law," noting that it forced the sheriff to "summon those with whom he . chanced to meet," some of whom were "brought into the court in a state unfit for business." In response to such criticisms, the legislature adopted a new system in 1836 wherein the sheriff was required to summon thirty "discreet citizens of the county, possessing the qualifications required by the existing laws ...." In 1837 the legislature reduced the number to be summoned to twenty-four and in 1838 it created three jury commissioners per county to make an initial selection of one hundred residents from which twenty-four names would be selected and given to the sheriff via the clerk. In 1852 a new statute specified that the trial judge could dismiss the first twenty-four summoned after one week's service, to be replaced by a new group of twenty-four drawn from the original pool of one hundred. 4 Although Governor Charles A. Wickliffe announced shortly after 54 THE KENTUCKY REVIEW the reforms of 1836-1838 that they had proved "highly beneficial to the administration of justice," subsequent comment suggests continued dissatisfaction with the system. An investigative story by the Louisville Evening Post in 1879 revealed shortcomings probably all too commonplace within the state as a whole. The Post accused If the sheriff of Jefferson County of shirking his duty by failing to summon the persons whose names were given to him by the jury commissioners and relying instead on bystanders to form the jury panel. Twenty-eight of the thirty persons to be summoned by the sheriff had been excused for cause, according to court records. g When the Post contacted five of those supposedly excused, four of them stated that they had never been contacted by the sheriff. According to the Commercial the habit of the "responsible householder" to refuse to obey his jury summonses and to pay "the e small fine cheerfully" augmented the tendency of the system to rely s on bystanders of an inferior calibre.5 Kentucky's problems with the implementation of her jury laws apparently fit within the mainstream of the nation's nineteenth-century experience. The Times continually complained of evasions of jury duty by the respectable citizens of New York City, leaving the panels to be filled by drunks, crooks, and the unemployed. At first evaders simply ignored summonses and paid a nominal fine if detected.